Bernie Bros, Clinton Foes and the Supremes

If it wasn’t clear from my prior posts on this, I’ll make it clear now: #ImWithHer.  With that out of the way…

Discussions surrounding a particular question have been circulating on my social media feeds and at my office: should Bernie drop out?  As someone who is closely aligned ideologically with Bernie (and with Hillary – they aren’t that different on most of the issues I care about), my response to Bernie supporters has been to reframe the question slightly.  Why should Bernie stay in?

At first, I considered whether this was being driven by gender dynamics.  Put another way, would we see this play out the same way if Hillary were a man?  It is certainly possible that this is partially being driven by the fact that women, including Hillary, are often subjected to double standards, particularly around their proclivity for leadership.   But, all things considered, I’ve decided that, even if Hillary were a man, #BernieBros and other Sanders enthusiasts might nonetheless be rooting for him to stay in to the bitter end.

Why?  This guy.

ralph nader shattering the ceiling

As my good friend Dave reminded me, we’ve been here before.   Last time around, we were talking about Nader vs. Gore and whether and at what point Nader supporters should throw their weight behind Gore.  So, I’m at least happy that whether it’s a “Hillary” or an “Albert,” a left contingent would be arguing for their candidate staying in and—more important—would be debating whether to vote for the other guy or gal in the general election.

Nader supporters talked about needing a party on the left that took their issues seriously and resisted the drift to the right in the Democratic Party.  Now, we are hearing the same things from Sanders supporters.  For example, one Sanders fan recently argued that

“if you think that the Democratic Party is moving steadily in the wrong direction, and that if elected its nominee would make this country worse rather than better, then you should certainly not vote for that person or support their candidacy. . . The question is whether you should look at the choices for today alone, or for the future. . . The only way the Democratic Party will ever get back on the right track will be if there are real consequences for being on the wrong track. It’s not about having a perfect candidate in your mind–it’s about seeing the long term trends.”

Having gotten gender out of the way (mostly, I guess.  Did people say Al Gore was going to make the country worse?  I don’t remember. Either way, come on, people!  Hyperbole much?), I do find appealing the idea of thinking about through the short term/long term frame.  My understanding of many of the critiques of Hillary is that the kind of change she represents is too incremental, too modest for those that #FeeltheBern. It is, in essence, a critique on her short term.  The critique voiced above by my associate is of long-term concern for the Democratic Party.

Here may be where I differ with my friend.  I see the Party as a means to an end.  The Party is there to ultimately serve the people and their interests.  And for the Sanders fans, if the choice is Hillary or a Republican candidate, only one of those two is going to protect the interests of the people against the interests of corporations.  And that difference is going to have both particularly meaningful consequences over the long term.  Why?  Article III of the Constitution.

Article III of the Constitution means that federal judges, once appointed, can serve the rest of their lives.  And the President is who nominates Article III judges, including for the Supreme Court.  Setting aside Antonin Scalia’s replacement (and that’s a big set-aside), it is important to keep in mind that in the U.S., the average life expectancy is just under 79 years.

Justice Age
Justice Ginsburg (aka the Notorious RBG)  83 (March 15, 1933)
Justice Kennedy 79 (July 23, 1936)
Justice Breyer 77 (August 15, 1938)
Justice Thomas 67 (June 23, 2948)
Justice Alito 66 (April 1, 1950)
Justice Sotomayor 61 (June 25, 1954)
Chief Justice Roberts 61 (January 27, 1955)
Justice Kagan 55 (April 28, 1960)

We currently have two Justices who have passed that mark and another Justice is going to pass the 79th year mark during the next President’s term.   (And, btw, Scalia was 79).  Two of those Justices — Ginsburg and Breyer — are more likely to evaluate cases in a manner that weighs more heavily those factors that Sanders supporters think are important, and the third – Kennedy — has acted as an important swing voteparticularly on socially liberal causes, for years (even if he doesn’t like the phrase “swing vote”).

Moreover, most Justices do not remain on the bench until they die – in fact, only three have died on the bench in the last 63 years.  So retirement is a real possibility, certainly for the three already discussed above, but also for others who may decide they want to fill their final years with more than legal arguments.  While the average age of retirement for Supreme Court justices is now around 78, it used to be 68 – and that brings in Justices Thomas and Alito as others to at least consider as possible departures in the near-ish future.

All this means that somewhere between three to five Justices may be nominated by the next President.  That is DECADES of decisions that shape, constrain and sometimes liberate American life – every single facet of it.

Do I place outsized emphasis on the power of the Courts generally? Maybe. But am I overstating this one? I don’t think so. Who you pick as President picks this next Supreme Court. With that in mind, it is time to focus on the real fight at hand – which isn’t getting decided this July at the DNCC, it’s getting decided November 8, 2016. Bernie Bros can’t afford to be Clinton Foes if they really care about this country and its future. It’s time for Bernie and his legion to focus on making sure we all get a win in November.

Katherine Kimpel

Kate Kimpel is the Senior Editor of Shattering the Ceiling and is also an accomplished civil rights lawyer. She represents women and people of color in discrimination cases (and other kinds of employment and civil rights matters).  When not lawyering, she likely is bragging about her hound dog Ulysses, inventing cocktails to serve at her next dinner party, or convincing her husband to watch reruns of a Joss Whedon television show (any of them will do). 

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